Dolan v. Simpson

Annotate this Case

152 S.E.2d 523 (1967)

269 N.C. 438

Dan DOLAN, Minor by his next friend, William C. Dolan v. Helen Lynn SIMPSON, Alexander Oldham McCarley, John D. McCarley, Jr., and John D. McCarley, III, t/a Echo Farm Dairy.

No. 206.

Supreme Court of North Carolina.

February 3, 1967.

*525 Burnett & Burnett and Aaron Goldberg, Wilmington, for plaintiff.

R. S. McClelland and W. Allen Cobb, Wilmington, for Helen Lynn Simpson, defendant.

Marshall & Williams, Wilmington, for Alexander Oldham McCarley, John D. McCarley, Jr., and John D. McCarley, III, defendants.

*526 SHARP, Justice.

Appellant's first assignment of error challenges the court's judgment nonsuiting defendants McCarley. In his complaint, plaintiff alleges that the driver of the McCarley station wagon was negligent in that he operated it at an excessive rate of speed, without having it under proper control, without keeping a proper lookout, and in that he failed to yield the right of way to the Simpson vehicle, which was first in the intersection. He further alleges that McCarley's negligence, combined with that of Mrs. Simpson, caused the collision. Plaintiff's evidence, however, does not sustain these allegations.

McCarley was traveling in the northernmost lane for westbound traffic on a perfectly straight road at a speed of 45-50 MPH in a 55 MPH speed zone. The only evidence of McCarley's speed and the distances between the two automobiles came from his adverse examination, which plaintiff introduced in evidence. In doing so plaintiff represented McCarley as worthy of belief. Cline v. Atwood, 267 N.C. 182, 147 S.E.2d 885. It is true that McCarley was approaching an intersection but, so far as the evidence reveals, it was an unmarked intersection. In any event, Oleander was the dominant highway. At a point where visibility was two miles in each direction, and when McCarley was only 75 feet away, defendant Simpson turned her vehicle across his path. She says that before she attempted to turn left into Hawthorne, she stopped, looked to the east, and saw no approaching headlights. It was, of course, impossible for McCarley to have traveled two miles while Mrs. Simpson crossed the two westbound lanes, each eleven feet wideeven if she crossed them at an angle.

McCarley says that Mrs. Simpson gave no signal of her intention to turn. She says that she had the "blinking lights" on at the time she was making the left turn, but she did not say when she turned them on. The conclusion is inescapable that Mrs. Simpson either did not see the lights of the approaching McCarley vehicle or that, if she did, she misjudged his speed. Her report to the patrolman suggests the latter. In any event, it appears that the conduct of Mrs. Simpson, who, after coming to a complete stop, turned across the path of a vehicle traveling at 45-50 MPH when it was only 75 feet away, constituted the sole proximate cause of the collision. Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919. Plaintiff's case against defendants McCarley is controlled by Cline v. Atwood, supra, and the cases cited therein. See also Harris v. Parris, 260 N.C. 524, 133 S.E.2d 195. The nonsuit was properly entered, and plaintiff's first assignment of error is overruled.

As a basis of his contention that he is entitled to a new trial against defendant Simpson, plaintiff assigns as error the court's refusal to permit the jury to consider the mortuary table as evidence of plaintiff's life expectancyat age 3, 65.1 years. G.S. 8-46. The burden is on a plaintiff claiming damages for a permanent injury to establish it by the greater weight of the evidence, and, unless there is some evidence of a permanent injury, the mortuary table is inadmissible. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753. Plaintiff's evidence left the permanency of his injuries and symptoms within the realm of speculation. The exclusion of the table, therefore, cannot be held for error.

Plaintiff's other assignments of error relate to the exclusion of evidence which would not, in our opinion, have altered the verdict if admitted. Testimony of similar import was thereafter given by the same witness, or the excluded evidence was of negligible import when compared with other testimony pertaining to plaintiff's injuries.

In the trial below we find no error sufficient to disturb the verdict.

No error.